Bit Parts

Accounting-Malpractice Claim/Arbitration

The Court of Appeal of California, Second District, Division 5, decided that an arbitration provision in a retainer agreement for an accounting firm to represent Kathlynn Federici in a divorce from her husband Danny Federici, keyboardist for Bruce Springsteen's E Street Band, barred her malpractice suit against the firm. Federici v. Gursey Schneider & Co. LLP, B183945. The plaintiff had hired Gursey Schneider to determine the value of the couple's separate and community property. Kathlynn later concluded that the marital settlement was unfair to her and sued the accountants for professional negligence. But the court of appeal explained that 'an unambiguous provision in Gursey's retainer agreement required, as a prerequisite to any future malpractice action, that plaintiff raise existing professional negligence claims as an affirmative defense in any fee-related arbitration with Gursey ' so that any such damages would be offset against Gursey's fees ' and only if that remedy failed to compensate plaintiff for all of her negligence damages could she pursue further relief through a separate litigation.'

Contributory and Vicarious Copyright Infringement/Interlocutory Appeal

The U.S. District Court for the District of New Jersey denied a motion under 28 U.S.C. 1292(b) for an interlocutory (ie, expedited) appeal by the operators of a flea market found on summary-judgment to be contributorily and vicariously liable for copyright infringement for running a 'pirate bazaar.' Arista Records Inc. v. Flea World Inc., 03-2670 (JBS). An interlocutory ap-peal may be granted where there is a controlling question of law. But the district court noted in part: 'Defendants take issue with Court's application of the legal standard to the facts of this case (ie, applying the requirements for secondary liability to the owners and operators of a flea market where vendors sell counterfeit CDs and cassettes). Section 1292(b), however, may not be invoked to obtain review of whether a trial court properly applied the law to the facts.

Copyright Infringement/Substantial Similarity

The U.S. District Court for the Southern District of Texas, Houston Division, granted summary judgment for singer Beyonce Knowles in an infringement suit filed by the writer of the song 'Got a Little Bit of Love for You' over Beyonce's recording of the song 'Baby Boy.' Armour v. Knowles, H-05-2407. Plaintiff Jennifer Armour claimed that she had submitted her song to Beyonce, her father Matthew Knowles and record company executives. The district court noted that it 'assumes for purposes of the motions for summary judgment that Plaintiff can establish factual copying and Defendants do not establish independent creation. ' Both songs feature a female vocalist and are pleasant to hear, but otherwise the two songs sound almost nothing alike. The key, the tempo, the rhythm, and the melody are substantially dissimilar. Any minimal similarity, such as the similar beat in a half measure of each song, is insignificant in relation to the overwhelming differences between the two songs. ' The only similarity in the lyrics is the phrase 'Every time I close my eyes.' This is a small, common phrase that also appears in dozens of songs ' Such a common phrase lacks originality and is not protected under copyright law.'

The U.S. District Court for the Northern District of West Virginia ruled that an individual who lost the right to his copyright in the song 'Jamboree in the Hills' as a result of his 1993 bankruptcy ' but who repurchased the copyright in Dec. 22, 2004 ' could proceed with his May 2005 infringement suit alleging unauthorized use of the song from the repurchase date to promote a music festival of the same name. Nutter v. Clear Channel Communications Inc., 5:05CV65. But the district court also held: 'The more difficult issue, and the one that is a subject of dispute between the parties, is what, if any, causes of action Nutter may assert against the defendants for infringing activity that occurred prior to his reacquisition of the copyright in 2004. ' Although the bankruptcy court authorized the trustee to sell Nutter 'copyrights and any causes of action related to those copyrights,' the bill of sale makes no mention of causes of action. ' Therefore, any causes of action for acts of infringement occurring prior to December 22, 2004 still belong to the bankruptcy trustee, and the plaintiff has no standing to assert them.'

Accounting-Malpractice Claim/Arbitration

The Court of Appeal of California, Second District, Division 5, decided that an arbitration provision in a retainer agreement for an accounting firm to represent Kathlynn Federici in a divorce from her husband Danny Federici, keyboardist for Bruce Springsteen's E Street Band, barred her malpractice suit against the firm. Federici v. Gursey Schneider & Co. LLP, B183945. The plaintiff had hired Gursey Schneider to determine the value of the couple's separate and community property. Kathlynn later concluded that the marital settlement was unfair to her and sued the accountants for professional negligence. But the court of appeal explained that 'an unambiguous provision in Gursey's retainer agreement required, as a prerequisite to any future malpractice action, that plaintiff raise existing professional negligence claims as an affirmative defense in any fee-related arbitration with Gursey ' so that any such damages would be offset against Gursey's fees ' and only if that remedy failed to compensate plaintiff for all of her negligence damages could she pursue further relief through a separate litigation.'

Contributory and Vicarious Copyright Infringement/Interlocutory Appeal

The U.S. District Court for the District of New Jersey denied a motion under 28 U.S.C. 1292(b) for an interlocutory (ie, expedited) appeal by the operators of a flea market found on summary-judgment to be contributorily and vicariously liable for copyright infringement for running a 'pirate bazaar.' Arista Records Inc. v. Flea World Inc., 03-2670 (JBS). An interlocutory ap-peal may be granted where there is a controlling question of law. But the district court noted in part: 'Defendants take issue with Court's application of the legal standard to the facts of this case (ie, applying the requirements for secondary liability to the owners and operators of a flea market where vendors sell counterfeit CDs and cassettes). Section 1292(b), however, may not be invoked to obtain review of whether a trial court properly applied the law to the facts.

Copyright Infringement/Substantial Similarity

The U.S. District Court for the Southern District of Texas, Houston Division, granted summary judgment for singer Beyonce Knowles in an infringement suit filed by the writer of the song 'Got a Little Bit of Love for You' over Beyonce's recording of the song 'Baby Boy.' Armour v. Knowles, H-05-2407. Plaintiff Jennifer Armour claimed that she had submitted her song to Beyonce, her father Matthew Knowles and record company executives. The district court noted that it 'assumes for purposes of the motions for summary judgment that Plaintiff can establish factual copying and Defendants do not establish independent creation. ' Both songs feature a female vocalist and are pleasant to hear, but otherwise the two songs sound almost nothing alike. The key, the tempo, the rhythm, and the melody are substantially dissimilar. Any minimal similarity, such as the similar beat in a half measure of each song, is insignificant in relation to the overwhelming differences between the two songs. ' The only similarity in the lyrics is the phrase 'Every time I close my eyes.' This is a small, common phrase that also appears in dozens of songs ' Such a common phrase lacks originality and is not protected under copyright law.'

The U.S. District Court for the Northern District of West Virginia ruled that an individual who lost the right to his copyright in the song 'Jamboree in the Hills' as a result of his 1993 bankruptcy ' but who repurchased the copyright in Dec. 22, 2004 ' could proceed with his May 2005 infringement suit alleging unauthorized use of the song from the repurchase date to promote a music festival of the same name. Nutter v. Clear Channel Communications Inc., 5:05CV65. But the district court also held: 'The more difficult issue, and the one that is a subject of dispute between the parties, is what, if any, causes of action Nutter may assert against the defendants for infringing activity that occurred prior to his reacquisition of the copyright in 2004. ' Although the bankruptcy court authorized the trustee to sell Nutter 'copyrights and any causes of action related to those copyrights,' the bill of sale makes no mention of causes of action. ' Therefore, any causes of action for acts of infringement occurring prior to December 22, 2004 still belong to the bankruptcy trustee, and the plaintiff has no standing to assert them.'